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The ACA’s Immigration Quirk

I was amused but not surprised to read that in announcing her support for expanding Arizona’s Medicaid program, Governor Jan Brewer pointed to the fact that without the expansion, only non-citizens with incomes under the poverty level would be eligible for insurance under the ACA. What Brewer didn’t say, was that the ACA’s apparent preference for non-citizens results from precisely the type of anti-immigrant laws with which Gov. Brewer is usually associated.

In 1996, shortly after California passed the notorious Proposition 187 which denied state public benefits to undocumented immigrants, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act, better known as the Welfare Reform Act. Among other things, this law imposes a 5 year waiting period before most legal permanent residents can enroll in the federal Medicaid program. The law also barred many other immigrants who are lawfully residing within the U.S. from Medicaid altogether.

The ACA did not repeal the provisions in the Welfare Reform Act limiting immigrants’ access to Medicaid. Instead, Congress sought to provide coverage to lawfully residing immigrants by permitting those with incomes under 100% of the Federal Poverty Level to receive subsidies to purchase insurance on the exchanges. Those subsidies were not necessary for citizens with such low incomes because Congress assumed that they would be brought into the Medicaid program.

The Supreme Court’s decision in NFIB v. Sebelius giving states the option of not expanding their Medicaid program created the quirk to which Brewer pointed. If a state now chooses not to expand its Medicaid program, lawfully residing non-citizens with incomes under 100 % of the poverty level will be eligible to receive subsidies when similarly situated citizens will be ineligible for such subsidies. To prevent this preference for non-citizens, Brewer now supports expanding her state’s Medicaid program.

There are of course many reasons why a state should expand its Medicaid program. The need to avoid favoring immigrants, however, is not one of them. The ACA’s apparent preference for immigrants is not much of a preference. Whether people with the lowest income levels will be able to afford insurance on the exchanges even with the subsidies provided remains quite unclear. Moreover, because they are ineligible for Medicaid, many non-citizens lack access to the rehabilitative and long term coverage that Medicaid provides to citizens when become disabled. That’s why some hospitals have turned to “repatriating” seriously ill immigrants. Rehabilitation hospitals and nursing homes won’t take patients who are ineligible for Medicaid.

What’s especially ironic about Brewer’s comments, however, is that anti-immigrant sentiments have often served to impede citizens’ access to care. Draconian anti-immigration laws such as Arizona’s SB 1070 can deter citizens in immigrant communities from accessing care. More broadly, hostility to the provision of public benefits to immigrants has undermined support for universal health care, as was evident in the summer of 2009 when anti-immigrant activists protested against health reform in town hall meetings around the country.

Now perhaps the tables are turning. Instead of reducing citizens’ access to health insurance, the anti-immigrant policies enshrined in the Welfare Reform Act, and acknowledged by the ACA, may be providing governors with a reason, or at least a rationale, for expanding insurance coverage to their own citizens. If that’s the case, poor citizens and their health care providers will have reason to cheer. Non-citizens, however, will continue to have less affordable and less comprehensive insurance options.